Wood v. Kerkeslager
Decision Date | 22 June 1909 |
Docket Number | 110 |
Citation | 225 Pa. 296,74 A. 174 |
Parties | Wood, Appellant v. Kerkeslager |
Court | Pennsylvania Supreme Court |
Argued April 19, 1909
Appeal, No. 110, Jan. T., 1909, by plaintiffs, from order of C.P. No. 5, Phila. Co., June T., 1908, No. 2,606, discharging rule for judgment for want of a sufficient affidavit of defense in case of William Wood and John P. Wood copartners trading as William Wood & Company, v. Irvin Kerkeslager et al., Trustees of the Bankrupt Estate of Alexander Crow, Jr. and the Land Title & Trust Company. Reversed.
Assumpsit for money had and received.
Rule for judgment for want of a sufficient affidavit of defense. Before RALSTON, J.
Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.
The order of the court refusing judgment is reversed, and the record is remitted with direction that judgment be entered against the Land Title & Trust Company for want of a sufficient affidavit of defense, unless other legal or equitable cause be shown why such judgment should not be entered.
John G. Johnson, with him W. B. Linn, for appellants. -- Crow alone could not revoke Patton's trusteeship: Blackstone v. Buttermore, 53 Pa. 266.
Crow's trustees in bankruptcy stand in his shoes and have no other rights than Crow had: Hewit v. Berlin Machine Works, 194 U.S. 296; Thompson v. Fairbanks, 196 U.S. 516; York Mfg. Co. v. Cassell, 201 U.S. 344; Thomas v. Taggart, 209 U.S. 385.
The Land Title & Trust Company's position was stakeholder for claimants: Philadelphia v. Lockardt, 73 Pa. 211; Watson v. McManus, 221 Pa. 41.
Though a municipality may, under some circumstances, pay and disregard a partial assignment (Appeals of Philadelphia, 86 Pa. 179, 182; Geist's Appeal, 104 Pa. 351), this does not discharge the assignor of his liability under his contract. It is simply a rule of convenience to prevent a municipality from being subjected to the annoyance of paying numerous persons or being subject to many suits, where there was originally but one obligee, and that on a contract, something very different from an eminent domain obligation.
But, at bar, the city is not subjected to the annoyance of several suits, as the money was paid to a stakeholder by agreement of all the parties in interest, releasing the city in full. Therefore, even if the assignments were partial instead of entire, the reason for the application of the rule against partial assignments drawn against municipalities having disappeared, the rule disappears and equity should prevail: Soley's Est., 15 W.N.C. 351; Jarecki Mfg. Co. v. Hart, 5 Pa. Superior Ct. 422; U.S. v. Vaughan, 3 Binney, 394; Noble v. Thompson Oil Co., 79 Pa. 354.
W. W. Porter, of Porter, Foulkrod & McCullagh, and James F. Campbell, with them Joseph L. Greenwald, for appellees. -- The attempted assignments are for part of a fund due by the city to the assignor, and having never been accepted by the city, are invalid, and create no lien to the prejudice of other creditors: Philadelphia v. Lockhardt, 73 Pa. 211; Watson v. McManus, 221 Pa. 41; Philadelphia's App., 86 Pa. 179; Geist's App., 104 Pa. 351; Schaffer v. Cadwallader, 36 Pa. 126; Bunyea v. Robinson, 8 Del. Co. 275; Penn Iron Co. v. Lancaster, 14 Lanc. L.R. 177; McManus v. School Dist., 4 Kulp, 439.
The assignments to the plaintiffs were not good in equity even as against an ordinary debtor: Christman v. Russell, 81 U.S. 69; Trist v. Child, 88 U.S. 447; Manderville v. Welch, 18 U.S. 277; Jermyn v. Moffit, 75 Pa. 399; Geist's App., 104 Pa. 351.
The power of attorney by Crow to Patton was revocable: Watson v. Bagaley, 12 Pa. 164; Blackstone v. Buttermore, 53 Pa. 266; Yerkes's App., 99 Pa. 401; Walker v. Walker, 125 U.S. 339; Johnson v. Ravitch, 99 N.Y.S. 1059; Silverman v. Penna. R.R. Co., 141 Fed. Repr. 382; Mueller v. Nugent, 184 U.S. 1; Robinson v. Elliott, 89 U.S. 513; Bank v. Hunt, 78 U.S. 391; Norton v. Switzer, 93 U.S. 355; In re Baird, 126 Fed. Repr. 845.
No claim can be made by the appellants through Patton as trustee for them, since Patton is not a party to the record, and has never made any demand.
Crow's claim against the city, being for injuries resulting to his property by the right of eminent domain, was a personal right, not capable of assignment to the plaintiffs: Com. v. Shepard, 3 P. & W. 509; Sibbald's Est., 18 Pa. 249; Schuylkill, etc., Nav. Co. v. Decker, 2 Watts, 343; Patten v. Wilson, 34 Pa. 299; Marsh v. R.R. Co., 204 Pa. 229; Spofford v. Kirk, 97 U.S. 484.
Before FELL, BROWN, MESTREZAT, POTTER and STEWART, JJ.
Alexander Crow, Jr., was the owner of certain real estate in the city of Philadelphia, and, in October, 1906, was notified that the city would, three months thereafter, take his property for a parkway. In January, 1907, the city took possession of the land and some time prior to March 5, 1907, condemnation proceedings were instituted for the assessment of the damages to be paid to Crow. He appointed J. Lee Patton, Esq., a member of the Philadelphia bar, as his attorney to present and collect his claim for compensation. On March 5, 1907, Crow, Wood & Company, the appellants, and Patton entered into an agreement, of which the following is a copy:
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